First we'll surrender. Then we'll negotiate.

Professor Kmiec has a cunning plan:

I am firmly in the camp that now sees non-legal paths as the best means of reducing abortion, but I also relish the belief (much denigrated on less thoughtful sites) that it is possible to moderate the legal implications of FOCA by reminding the advocates of choice that true choice includes choosing life and funding one side to the exclusion of the other raises the very equality and discrimination concerns at which the legislation purports to be aimed.

This is what the Freedom of Choice Act his hero has passionately sworn to sign into law will do:

Under current law, Medicaid funding for abortion is prohibited except in cases of rape, incest, or the life of the mother. Under FOCA, Medicaid funding for abortion would be required. That’s not the status quo.

Under current law, abortions are not performed in many hospitals. Under FOCA, abortionists would be able to set up shop in any hospital, and any state or federal law or regulation to the contrary would be voided. That’s not the status quo.


Under current law, states can (and many have) pass informed consent law and/or waiting periods for women seeking abortions. Under FOCA, such laws would all be voided. That’s not the status quo.

Under current law, abortions are not performed on military bases. Under FOCA, they would be. That’s not the status quo.

FOCA does enshrine the right to an abortion in statutory law, making it that much more difficult to stop abortion even if Roe is overturned. That’s bad enough. But FOCA does far more than that. It would, in one fell swoop, wipe out most of the legal gains made by the pro-life movement in the last 30 years.

The Professor sees this as an opportunity to dialogue.

Holy hopping snot.

Sales representatives, do not hire this man.

At the risk of debilitating pedantry, here's the problem with it: had we followed the "hearts 'n minds only" plan with respect to racial equality and civil rights, Senator Obama would not be the nominee of the Democratic Party. He probably wouldn't live in the Chicago neighborhood he does now. A lot of hearts and minds were just fine with Jim Crow and its de facto equivalents in 1953, in both the north and south. They remained quite happy with it until 1964-65, but they could no longer hide behind "it's the law" when court precedent and legislation turned against them.

The progress we've seen (far, far from complete, but still progress) on racial reconciliation/civil rights in this country would not have been achieved without both legal efforts (Brown v. Board of Education, the Civil Rights Act of 1964, the Voting Rights Act of 1965, Loving v. Virginia) *and* moral suasion (Little Rock, Selma, Dr. King and the brave work of black citizens seeking full citizenship) working in tandem.

Appeals to morality are essential, as is education. But both work much more effectively when the legal climate favors that struggle, as opposed to destroys it. In fact, I'm hard pressed to think of a positive cultural reformation which did not involve legal reform as well.

Disregarding history, logic, and even common sense, legal marginalization of the pro-life movement is collateral damage that Professor Kmiec and the rest of Obama's Catholic Fan Club are happy to accept. There are a lot of words to describe this irrational quietism, none of them polite. Ultimately, it amounts to a separate peace with the culture of death.

Press Secretary Kmiec, you are hired. Congratulations.

[H/t to Jay for the Kmiec comment find.]